FULL PRO RESTORATION, A/A/O PLACIDO FERNANDEZ v. CITIZENS PROPERTY INSURANCE CORPORATION

• Court: District Court of Appeal of Florida
• Decided: March 15, 2023
• Docket: 21-2312
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 15, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-2312 Lower Tribunal No. 19-20010 CC ________________

Full Pro Restoration, a/a/o Placido Fernandez, Appellant,

vs.

Citizens Property Insurance Corporation, Appellee.

An Appeal from the County Court for Miami-Dade County, Michael G. Barket, Judge.

Louis Law Group, PLLC, and Pierre A. Louis and Alibia N. White, for appellant.

Lewis Brisbois Bisgaard & Smith LLP, and Kathryn L. Ender and Michael J. Ellis, for appellee.

Before FERNANDEZ, C.J., and HENDON and GORDO, JJ.

HENDON, J. Full Pro Restoration, a/a/o Placido Fernandez (“Full Pro”), appeals

from a final summary judgment in favor of Citizens Property Insurance

Corporation (“Citizens”). We affirm.

Hurricane Irma hit south Florida in September 2017. Nineteen

months later, on April 16, 2019, Placido Fernandez (”Insured”) filed a claim

of loss under his Citizens homeowner’s insurance policy for water intrusion

damage to his property that he alleged occurred as a result of Hurricane

Irma. The Insured also executed a post-loss assignment of benefits to Full

Pro. Full Pro performed water damage mitigation repairs on the property.

On April 30, 2019, Citizens’ field inspector, Scott Campbell (“Campbell”),

inspected the property and concluded that the damage was not incurred as

a result of a covered loss, and that the water damage to the interior ceilings

occurred as a result of wear and tear, and deterioration of the roof

materials. Citizens also retained Ashraf Consulting Engineers (“ACE”) to

conduct a pre-suit, pre-denial reinspection of the property. In May 2019,

ACE engineer Hasan Rizvi (“Rizvi”) inspected the property and prepared a

report regarding the damage to the roof and interior finishes, the cause and

origin of the leak, and the extent and duration of the damage. Rizvi’s

relevant conclusion was that there was no damage to the roof as a result of

the wind-related forces of Hurricane Irma. Citizens denied coverage.

2 Full Pro filed an amended complaint in June 2020, asserting breach

of contract against Citizens for failing to pay the full amount of Full Pro’s

invoice for roof damage repairs. In June 2020, Citizens moved for summary

judgment. Citizens argued that summary judgment was warranted on two

grounds: (1) the roof did not suffer a covered peril-created opening through

which water entered, and Full Pro presented no evidence to the contrary;

and (2) Full Pro failed to meet its burden to establish an exception to the

Policy’s exclusion for wear, tear, and deterioration. In support of its motion,

Citizens relied on the inspection by, and affidavit of, Citizens’ field adjuster

Campbell, and ACE engineer Rizvi’s reinspection report and accompanying

affidavit.

The summary judgment hearing was postponed several times by Full

Pro. Between September 2020 and June 2021, the Insured was apparently

uncooperative with Full Pro’s attempts to schedule an inspection by its

expert. Full Pro found it necessary to rely on the deposition taken by

Citizens in May 2021 of its engineering expert, Rizvi.

The summary judgment hearing was re-set to September 27, 2021.

Less than twenty days before the summary judgment hearing, on

September 21, 2021, Full Pro filed the deposition transcript of Citizens’

3 expert, Rizvi, and filed its response to Citizens’ motion for summary

judgment four days before the hearing, on September 23, 2021.

At the September 27, 2021 summary judgment hearing, Citizens’

counsel, Mr. Perez, began by stating that Citizens’ expert, Rizvi, indicated

in his deposition that there were two missing roof shingles along the roof

edge, which the expert speculated could have been blown off by wind

because the underlying materials and adhesives were deteriorated. Rizvi

could not say the two missing shingles were “as a result of” Hurricane Irma

specifically. Rizvi further stated that there was no corresponding interior

water damage underneath the missing shingles. Further, Citizens argued

that the Insured waited nineteen months to report the damage, during

which time any other wind event could have loosened the two deteriorated

shingles.

What ensued for the remainder of the hearing was a discussion of

whether the new summary judgment rule 1.510(c)(5) applied, 1 and whether

1 Rule 1.510(c)(5) provides, Timing for Supporting Factual Positions. At the time of filing a motion for summary judgment, the movant must also serve the movant's supporting factual position as provided in subdivision (1) above. At least 20 days before the time fixed for the hearing, the nonmovant must serve a response that includes the nonmovant's supporting factual position as provided in subdivision (1) above. (underlining added).

4 pursuant to that rule, the court could consider Full Pro’s late filing of Rizvi’s

deposition transcript less than twenty days prior to the hearing. Full Pro’s

counsel, Ms. Henry, who asserted that she recently inherited the case,

admitted that the transcript filing was not in compliance with rule 1.510. Ms.

Henry argued, however, that the trial court should accept its late-filed

deposition testimony of Citizens’ expert Rizvi, and contended that the trial

court should grant its emergency motion for a continuance pursuant to rule

1.510(c)(5)(d)2 to enable it to obtain affidavits or further discovery. When

asked by the trial court what material evidence Full Pro would seek if a

continuance were granted, Ms. Henry answered that they wanted to show

there was a covered loss. Ms. Henry also asked the trial court to consider

granting Full Pro some latitude pursuant to rule 1.510(c)(5)(e)3, because of

2 Rule 1.510(c)(5)(d) provides, (d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. (underlining added). 3 Rule 1.510(c)(5)(e) provides, (e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly

5 the Insured failing to cooperate with counsel’s scheduling to allow another

inspection.

Citizens’ counsel argued in rebuttal that the late-filed Rizvi deposition

did not contain any new evidence that was not already available in the

record, and that despite the speculative two-shingle issue, the existing

evidence presented by engineer Rizvi’s and field inspector Campbell’s

reports showed that there was no peril-created opening in the roof caused

by Hurricane Irma. Further, counsel argued that under the rule, there was

no allowance for additional evidence to be proffered once the hearing had

begun. The trial court denied Full Pro’s motion for continuance and granted

summary judgment for Citizens, concluding that rule 1.510 did not give the

court discretion to consider the late-filed deposition or allow the court to

grant Full Pro additional time to continue discovery once the summary

judgment hearing was underway. Full Pro appeals.

address another party's assertion of fact as required by rule 1.510(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it; or (4) issue any other appropriate order. (underlining added).

6 Our standard of review of an order entering final summary judgment

is reviewed de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P.,

760 So. 2d 126, 130 (Fla. 2000). The trial court decided this case under

Florida's “new” summary judgment standard, where summary judgment is

proper when “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a).

Therefore, “the correct test for the existence of a genuine factual dispute is

whether ‘the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.’” In re Amends. to Fla. Rule of Civ. Proc. 1.510,

317 So. 3d 72, 75 (Fla. 2021) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248, (1986)). Put simply, “[i]f the evidence is merely colorable, or

is not significantly probative, summary judgment may be granted.”

Anderson, 477 U.S. at 249–50 (citations omitted). Navarro v. Citizens Prop.

Ins. Corp., 353 So. 3d 1276 (Fla. 3d DCA 2023).

Further, “the granting or denying of a motion for continuance is within

the discretion of the trial judge and a gross or flagrant abuse of this

discretion must be demonstrated by the complaining party before this court

will substitute its judgment for that of the trial judge.” Tr. Real Est.

Ventures, LLC v. Desnick, 278 So. 3d 242 (Fla. 3d DCA 2019) (citing Stern

7 v. Four Freedoms Nat'l Med. Servs., Co., 417 So. 2d 1085, 1086 (Fla. 3d

DCA 1982)).

Florida Rule of Civil Procedure 1.510(c)(5) states that the

nonmovant’s response to the motion for summary judgment, and its

supporting facts, must be served at least twenty days before the time fixed

for the hearing. The trial court correctly noted that the language of this

section of the rule is mandatory. The record shows that Citizens and Full

Pro took engineer Rizvi’s deposition in May 2021, but waited until six days

prior to the September 2021 hearing to file the deposition, and filed its

response to Citizens’ June 9, 2020 motion for summary judgment four days

prior to the hearing. Although Full Pro’s current counsel personally

demonstrated due diligence in seeking a continuance for her client, the

record does not otherwise explain why Full Pro was unable to timely submit

Rizvi’s deposition prior to the scheduled summary judgment hearing, which

had been pending since June 2020. Under these circumstances, we

conclude that the trial court did not abuse its discretion by denying Full

Pro’s proffer of the late-filed discovery. Desnick, 278 So. 3d at 243.

Full Pro next argues that the trial court abused its discretion by

denying its oral motion for a continuance to allow it to obtain further

discovery pursuant to Florida Rule of Civil Procedure 1.510(c)(5)(d). That

8 rule provides that “if a nonmovant shows by affidavit or declaration that, for

specified reasons, it cannot present facts essential to justify its opposition,

the court may defer considering the motion or deny it; allow time to obtain

affidavits or declarations or to take discovery; or issue any other

appropriate order.” (emphasis added). Full Pro cites to Rice v. NITV, LLC,

19 So. 3d 1095, 1099 (Fla. 2d DCA 2009), to argue that the trial court’s

denial of its motion for continuance was an abuse of discretion. In that

case, the plaintiff was prejudiced at the summary judgment hearing by

failing, through no fault of his own, to obtain replacement counsel, with

relevant discovery outstanding, and no opportunity to rebut summary

judgment. The Second District considered, “1) whether the movant suffers

injustice from the denial of the motion; 2) whether the underlying cause for

the motion was unforeseen by the movant and whether the motion is based

on dilatory tactics; and 3) whether prejudice and injustice will befall the

opposing party if the motion is granted.” (citations omitted). The Second

District concluded that without counsel, the plaintiff was unable to make his

case, his motion was not filed to delay, and the opposing party would not

be prejudiced by a continuance. Based on these conclusions, the Second

District concluded that the trial court abused its discretion in denying the

plaintiff’s motion for a continuance and, therefore, reversed.

9 By contrast, in this case it is not clear how a continuance would result

in additional evidence that would create a genuine issue of material fact

sufficient to preclude summary judgment. Rivzi’s deposition statement

regarding the cause of the two missing edge shingles was speculation

based on the ACE reinspection report in the record, not a “fact unavailable

to the nonmovant.” See Fla. R. Civ. P. 1.510(c)(5)(d). Rizvi stated, based

on his professional experience, that the roof materials had so deteriorated

as to cause the two shingles in question to delaminate from the

underlayment, such that any wind could remove them. It is speculation

whether that wind was Hurricane Irma or some subsequent wind in the

nineteen months between Irma and when the Insured filed the claim.

Further, and more important, Rizvi stated that the interior water damage

was not structurally related to the missing shingles.

“A trial court has the discretion to deny a continuance of a summary

judgment hearing where the outstanding discovery items are immaterial to

the dispositive issues in the case.” Crespo v. Fla. Entm't Direct Support

Org., Inc., 674 So. 2d 154, 155 (Fla. 3d DCA 1996) (citations omitted). In

this case, “the evidence is merely colorable, or is not significantly

probative” and a continuance to obtain further discovery would not lead to

any new evidence that would create a genuine issue of material fact

10 precluding summary judgment. 4 We conclude that the trial court did not

abuse its discretion by denying Full Pro’s rule 1.510(c)(5)(d) motion for

continuance. See Navarro, 353 So. 3d at 1276 (citing Anderson, 477 U.S.

at 249–50).

Finally, we find that the trial court did not abuse its discretion by

denying Full Pro’s motion for a continuance pursuant to Florida Rule of

Civil Procedure 1.510(c)(5)(e). Rule 1.510(c)(5)(e) provides if a party fails

to properly support an assertion of fact or fails to properly address another

party's assertion of fact as required by rule 1.510(c), the court may give

that party an opportunity to properly support or address the fact. It appears

from the record that Full Pro “had an adequate opportunity to engage in

discovery and . . . any further discovery was not likely to present any

material facts relevant to the trial court's disposition of the issues.” Barco

Holdings, 967 So. 2d at 289; see Canakaris v. Canakaris, 382 So. 2d 1197,

1203 (Fla. 1980) (concluding “appellants have failed to demonstrate that

4 Interestingly, Full Pro’s counsel made the same point: MS. HENRY: Yes, Your Honor, but the rules do allow, Your Honor, discretion if, you know, if Your Honor sees it appropriate to allow the admission of evidence that may have been filed late. I want to say, Your Honor, that Mr. Perez was present at the [Rizvi] deposition. We didn't file anything new. It was all things that both parties were aware of or at least on notice of. So, I don't believe it prejudices the defense. (Emphasis added).

11 the denial of the continuance was “arbitrary, fanciful, or unreasonable . . .

[or that] no reasonable man [or woman] would take the view adopted by the

trial court”). Accordingly, we affirm the trial court’s final summary judgment

in favor of Citizens Property Insurance Corporation.

Affirmed.